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Thomas v. Felker

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 17, 2010

EDWARD THOMAS, PLAINTIFF,
v.
T. FELKER, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Susan P. Graber United States Circuit Judge

ORDER GRANTING DEFENDANTS' REQUEST FOR CLARIFICATION AND DENYING PLAINTIFF'S MOTION FOR A STAY

I. Defendants' Motion

On February 19, 2010, Defendants filed a motion requesting clarification that there were no surviving due process claims against certain Defendants and requesting that Defendant Plainer not be required to file a responsive pleading until Plaintiff amends his complaint or his leave to amend expires. Clerk's Record, Docket No. 67 ("Doc." 67.). Plaintiff filed no response to this motion.

A. Due Process Claims

Plaintiff's original complaint alleged due process claims arising from the administrative grievance process. (Doc. 1). However, this court's order of January 25, 2010, dismissed those claims with prejudice. (Doc. 66). On June 10, 2009, this court ordered that Plaintiff be allowed to amend his complaint to add due process claims arising from his disciplinary hearings against Defendants Plainer, Lawry, Nelson, Cobb, Lowther, and Zinn. (Doc. 46.) The amendment did not add disciplinary due process claims against Defendants Perez, Vaderville, Runnels, Audette, Ingwerson, Ginder, Albonico, Speers, Beutler, Neimann, Betti, Wright, Medina, Clark, Shaw, Cottrell, Cochrane, or White. Consequently, Plaintiff alleges no surviving due process claims against those Defendants.

B. Defendant Plainer

This court's order of January 25, 2010, dismissed Plaintiff's state-law claims with 60 days' leave to amend. (Doc. 66.) Defendants request that Defendant Plainer not be required to file a responsive pleading until Plaintiff either amends his complaint or his leave to amend expires. This request is reasonable, and this court grants it.

II. Plaintiff's Motion

On February 19, 2010, Plaintiff filed a motion requesting a 180-day stay of the proceedings. (Doc. 69.) Plaintiff states that he is being treated for mental illness and needs time to obtain pro bono counsel. On February 24, 2010, Defendants filed a response opposing a stay. (Doc. 70.) Plaintiff filed no reply.

Plaintiff's statement of reasons for a stay is unsworn and provides no documentation supporting his claim that his mental illness and medication make him unable to proceed promptly in this matter. In the absence of evidence, this court denies the motion. Plaintiff may file a new motion with evidence if he chooses. In addition, this court's order of January 25, 2010, gave Plaintiff leave to amend his complaint as to certain claims. This court will grant Plaintiff more time to make those amendments.

III. Conclusion and Order

For the foregoing reasons, the court hereby:

1. GRANTS Defendants' request for clarification and states that Plaintiff's complaint alleges no surviving due process claims against Defendants Perez, Vaderville, Runnels, Audette, Ingwerson, Ginder, Albonico, Speers, Beutler, Neimann, Betti, Wright, Medina, Clark, Shaw, Cottrell, Cochrane, or White;

2. GRANTS Defendants' request that Defendant Plainer not be required to file a responsive pleading until Plaintiff amends his complaint or his leave to do so expires;

3. DENIES Plaintiff's motion for a stay of the proceedings; and

4. GRANTS Plaintiff an extension of leave to amend his complaint until May 17, 2010.

IT IS SO ORDERED.

20100317

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